UNITED STATES OF AMERICA, PETITIONER V. THOMAS O. ROBINSON, JR.
No. 86-937
In the Supreme Court of the United States
October Term, 1987
On Writ Of Certiorari To The United States Court Of Appeals For The
Sixth Circuit
Reply Memorandum For The United States
In our opening brief, we contended that the court of appeals'
judgment reversing respondent's convictions was flawed in two
respects. First, the court of appeals misconstrued this Court's
decision in Griffin v. California, 380 U.S. 609 (1965), and it did so
in a fashion symptomatic of the wider confusion among the lower
federal courts about the scope of the Griffin rule. Second, the court
of appeals misapplied the "plain error" doctrine, holding that courts
are freer to overlook a failure to object at trial where the error in
issue implicates constitutional rights.
1. Respondent shares our view that the rule in Griffin does not
forbid every comment pertaining to a defendant's failure to testify,
but only those comments that "'solemnize() the silence of the accused
into evidence against him'" (Resp. Br. 27 (quoting Griffin, 380 U.S.
at 614)). Respondent likewise agrees that a prosecutor must have
leeway to respond in rebuttal "when defense counsel indulges in
improper argument" (Resp. Br. 29). And respondent does not dispute
the general proposition that arguments or other trial procedures are
not constitutionally infirm simply because they place some burden on a
defendant's exercise of his right not to testify.
Respondent argues, however, that the prosecutor's rebuttal in this
case was improper because it was not warranted by defense counsel's
summation. According to respondent, defense counsel "confined his
criticism" to the government's purported failure, during its
"pre-indictment questioning," to afford respondent a chance to answer
"questions about the list of property (that respondent) submitted with
the insurance claim form through the mail" (Resp. Br. 31, 35). In
respondent's view, counsel did not argue that the government had
prevented respondent from telling his side of the story to the jury
(id. at 35). Thus, he reasons, the trial court violated the rule in
Griffin by permitting the prosecutor to respond as he did.
But respondent's account does not explain the words his counsel
actually used in summation (Tr. 671; J.A. 19):
Now, would you like to get indicted for that, without the
Government being fair, and being able to explain, have him
explain before you, members of your own community, rather than
before the agents?
These remarks cannot plausibly be understood simply to mean that the
investigators, during the pre-indictment proceedings, denied
respondent a chance to confront all of the evidence against him.
Respondent apparently recognizes as much, for he suggests (Resp. Br.
15) that in making this statement "(c)ounsel stressed the unfairness
of not giving the respondent an opportunity to explain to the
investigators first, rather than requiring him to explain it before a
jury." This more elaborate explanation, however, is equally unfaithful
to defense counsel's actual language; certainly, neither the trial
court nor the prosecutor construed the summation in that way. And
defense counsel failed to offer this (or any other) account of the
summation at a time when the trial court could have acted on it.
2. Respondent defends the court of appeals' plain error analysis on
three grounds. He argues, first, that the plain error doctrine is not
applicable at all, since even without an objection by counsel, "there
was no failure of the trial judge * * * in detecting the error" in the
prosecutor's rebuttal (Resp. Br. 39). Second, respondent agrees with
the court of appeals (id. at 44-47) that the plain error rule should
be more leniently applied when the error in question implicates
constitutional rights. Finally, respondent asserts (id. at 47-50)
that the prosecutor's rebuttal constituted plain error and was
properly noticed by the court of appeals, despite the absence of a
contemporaneous objection. Each of these contentions falls short of
the mark.
a. It is true, as respondent notes, that even without an objection
"(t)he district court considered the Fifth Amendment" (Resp. Br. 41)
when it ruled that the prosecutor could respond to counsel's remarks.
But it is not enough that a trial court is generally aware of possible
objections that might be raised to a particular evidentiary ruling.
In this case, because defense counsel failed to make a contemporaneous
objection, the court had no idea whether counsel actually opposed the
prosecutor's proposed rebuttal. Nor could the trial court consider
counsel's conflicting interpretation of his summation remarks. Had
defense counsel wished to rely on that alternative explanation, he had
a duty to make it known to the court. /1/
b. Respondent does not dispute this Court's observation in Yakus v.
United States, 321 U.S. 414, 444 (1944), that "(n)o procedural
principle is more familiar to this Court than that a constitutional
right may be forfeited in criminal as well as civil cases by the
failure to make timely assertion of the right before the tribunal
having jurisdiction to determine it." And respondent offers no reason
why the plain error rule should be applied more leniently when
constitutional claims are involved. Indeed, that has not been the
Court's practice. In Estelle v. Williams, 425 U.S. 501 (1976), for
example, the Court agreed with the defendant that under the Fourteenth
Amendment he should not have been required to stand trial in prison
garb. Nevertheless, because defense counsel had raised no objection
at trial to the practice, the Court refused to reverse the defendant's
conviction. While reluctant to find a "relinquishment of a
fundamental right * * * absent a showing of a conscious surrender of a
known right" (id. at 508 n.3), the Court explained (ibid.) that it
"has not * * * engaged in this exacting analysis with respect to
strategic and tactical decisions, even those with constitutional
implications, by a counseled accused." Quoting the Second Circuit's
decision in United States v. Indiviglio, 352 F.2d 276, 280 (1965),
cert. denied, 383 U.S. 907 (1966), the Court observed (ibid.) that
"(f)ederal courts, including the Supreme Court, have declined to
notice (alleged) errors not objected to below even though such errors
involve a criminal defendant's constitutional rights." And the Court
noted (425 U.S. at 508 n.3) that "(t)he reason for this rule is clear:
if the defendant has an objection, there is an obligation to call the
matter to the court's attention so the trial judge will have an
opportunity to remedy the situation." See also id. at 513-515 (Powell,
J., concurring). /2/
c. Respondent offers no support for his contention (Resp. Br.
47-50) that the prosecutor's summation in this case constituted plain
error in the required sense: a "'particularly egregious error'" that
"seriously affect(ed) the fairness, integrity or public reputation of
(the) judicial proceedings" (United States v. Young, 470 U.S. 1, 15
(1985) (citations omitted)). /3/ Respondent suggests (Resp. Br. 49)
that "the evidence of guilt was not overwhelming"; but, as our
statement of facts shows, the proof at trial was extraordinarily
strong. It is hard to imagine a stronger circumstantial case than
this one.
There is no more force to respondent's contention (Resp. Br. 24)
that the rebuttal "was crucial in this case (because) the defense
rest(ed) on the failure of the prosecution to establish guilt beyond a
reasonable doubt on each element of the crime charged." That is
essentially the defense in every criminal case.
Finally, respondent provides no support for his extravagant claim
(Resp. Br. at 33) that until the prosecutor's remarks, "the trial (had
been) based upon an accusatory system of criminal justice" but that
"(t)he remark changed the basis to an inquisitional system." It is not
clear what that characterization is meant to suggest. In any event,
if there were any dramatic change in the character of the trial at the
point of the prosecutor's remarks, it apparently was too subtle to
attract the notice of defense counsel at the time.
For the foregoing reasons, and the reasons set forth in our opening
brief, it is respectfully submitted that the judgment of the court of
appeals should be reversed.
CHARLES FRIED
Solicitor General
SEPTEMBER 1987
/1/ Respondent relies heavily (see Resp. Br. 24, 37, 39-44, 47) on
Fed. R. Crim. P. 51 for the surprising proposition that a
contemporaneous objection is not the only way to preserve an issue for
appeal. Rule 51 makes it unnecessary to lodge an exception to a
ruling in order to preserve the issue. But the rule clearly provides
that in place of an exception "a party, at the time the ruling or
order of the court is made or sought, (must) make() known to the court
the action which * * * (he) desires the court to take or * * * (his)
objection to the action of the court and the grounds therefor * * *."
Moreover, there is nothing "flexible" (Resp. Br. 39-40 n.9) about this
requirement. Indeed, Rule 51 by its terms excuses a party from making
an objection only when the party "has no opportunity to object."
Respondent does not suggest that he was somehow denied a chance to
make his views known to the trial judge. See Estelle v. Williams, 425
U.S. 501, 509-513 (1976).
/2/ Respondent suggests (Resp. Br. 44-47) that in each case in
which this Court has noticed a plain error, the error was of
constitutional dimension. None of the cited cases, however, described
the relevant error in constitutional terms. Indeed, only by
recharacterizing the cases in "fair trial" or "due process" terms is
respondent able to attach a constitutional label to each of the
various errors in the cases.
/3/ "The plain error doctrine * * * does not permit us to consider
the ordinary backfires -- whether or not harmful to a litigant's cause
-- which may mar a trial record. The doctrine focuses our attention
only on blockbusters: those errors so shocking that they seriously
affect the fundamental fairness and basic integrity of the proceedings
conducted below." United States v. Griffin, 818 F.2d 97, 100 (1st Cir.
1987).